EPA Moves to Adopt ASTM’s New PFAS Standard for Site Assessments to Limit Liability for Cleanups

EPA is moving quickly to adopt a recently revised industry standard that added per- and polyfluoroalkyl substances (PFAS) into its methods for assessing potentially contaminated properties, clearing the way for certain parties to use the standard as they seek Superfund liability waivers at brownfield sites under the “all appropriate inquiry” (AAI) rule.  The move is significant because it could provide liability relief to prospective purchasers and other potentially responsible parties at brownfields or other sites contaminated with PFAS.   

EPA is scheduled to publish in the Federal Register a direct final rule as well as a proposed rule to incorporate the updated American Society for Testing and Materials (ASTM) standard -- known as ASTM E1527-21 standard practice -- into its “Standards and Practices for All Appropriate Inquiries.”  The direct final rule will become effective 60 days after publication without further notice, unless the agency receives adverse comments, at which point the direct final rule would be withdrawn and the proposed rule would be the vehicle EPA uses to address comments and eventually finalize the rule.

The timing on this action is significant because EPA is poised to list PFOS and PFOA as hazardous substances under the Superfund law, a measure that is expected to drive massive new cleanup liability at many sites.  The upcoming rule would, for the first time, allow prospective purchasers an opportunity to limit their CERCLA liability for PFAS contamination by conducting appropriate site assessments. 

ASTM approved changes to its site assessment standard in November 2021, suggesting property owners or other users may include PFAS in site assessments of potentially contaminated properties if the substance is regulated by the state.  ASTM specifically approved changes to its Phase I environmental site assessments standard, including terminology revisions, new definitions and a footnote addressing PFAS, among other updates.

In its direct final rule, EPA references parties that may want to make use of the updated ASTM standard in order to secure liability protection.  Parties may wish to consider PFOS and PFOA during due diligence activities now -- even before any final designation -- depending on the site’s prior use, surrounding area, and future intended use.

With increased regulatory attention and litigation over the management and remediation of PFAS, this revised ASTM standard is a welcome tool to address major risks and liabilities linked to PFAS.  NASF will continue to monitor these developments and provide updates to NASF members.  If you have any questions or would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.